Advocates:
['DR RDSS KHARLIA', '', 'SS DHILLON', 'HARVEER SIDHU', 'BHAWANI SINGH']

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Writ Petition No. 4820 / 2017

1. Darshan Lal S/o Swaroop Singh, Aged About 50 Years, B/c

Kumhar Ward No.7, Sadhuwali, Tehsil & District Sriganganagar.

2. Krishan Kumar S/o Shri Lalchand, Aged About 40 Years, B/c

Kumhar R/o Ward No.8, Sadhuwali, Tehsil & District

Sriganganagar.

3. Avtar Singh S/o Shri Surajprakash,, Aged About 35 Years, B/c

Kumhar, Ward No.8, Sadhuwali, Tehsil & District Sriganganagar.

4. Jasveer Singh S/o Amarjeet Singh, Aged About 32 Years, B/c

Kumhar, R/o Ward No.6, Sadhuwali, Tehsil & District

Sriganganagar.

----Petitioners

Versus

1. Chief Engineer & Additional Secretary,, PWD, Governemtn of

Rajasthan, Jaipur Through the District Collector Sriganganagar.

2. Superintending Engineer,, PWD, Sriganganagar.

3. Chief Executive Officer,, Zila Parishad, Sri Ganganagar.

----Respondents

_____________________________________________________

For Petitioner(s) : Mr.R.D.S.S. Kharlia, Adv.

_____________________________________________________

JUSTICE DINESH MEHTA

Judgment

10/05/2017

By way of the present writ petition, petitioners have assailed

the legality of the order dated 25.03.2017, passed by the learned

Additional District Judge No.1, Sri Ganganagar in Civil Appeal

No.10/2017 (16/2017), whereby the appeal filed against the order

dated 03.03.2017, passed by the Civil Judge No.2, Sri Ganganagar

seeking Temporary Injunction had been rejected.

(2 of 4)

[CW-4820/2017]

The facts of the case in short are that the petitioners-

plaintiffs being resident of Village Sadhuwali, filed a suit, seeking

Mandatory and Permanent Injunction, restraining the respondents

from constructing “Gaurav Path” and also praying for a direction

for removal of the encroachment, mentioned in Para No.5 of the

plaint. Alongwith the said suit, an application under Order XXXIX

Rules 1 & 2 of the Code of Civil Procedure, 1908 was also filed by

the plaintiff, inter alia seeking an order restraining the

respondents from constructing the “Gaurav Path” without

removing encroachment in question.

Learned Trial Court rejected the petitioners’ application for

Temporary Injunction, vide its order dated 03.03.2017. While

deciding the question of prima facie case, it had observed that

when the Gram Panchayat, Sadhuwali has decided to construct

the “Gaurav Path” on that part of land, which is free from all sorts

of dispute, the construction of the road in question cannot be

stalled, as a tool to ensure removal of the encroachment.

Similar view was taken by the Appellate Court, with

additional finding that the plaintiffs-appellants have no prima facie

case inasmuch as, the road in question was being constructed on

a public land; that the public work of constructing road, cannot

wait till the alleged encroachments are removed and further that,

since the Panchayat has taken a decision to construct the road,

the Court would not interfere with such decision.

The learned Appellate Court has also observed that plaintiffs

have not impleaded Gram Panchayat, Sadhuwali as party; in

whose absence, the suit filed by the plaintiffs is neither

(3 of 4)

[CW-4820/2017]

competent nor any effective order can be passed.

Mr. R.D.S.S. Kharlia, counsel for the petitioner challenging

the order impugned, contended that the defendants are

proceeding arbitrarily and in spite of the fact that a road is already

existing, though with some encroachments thereupon, the

respondents are going ahead with constructing “Gaurav Path”,

instead of removing the encroachment. He also contended that

offending road is being constructed on altogether a different part

of the public land, which can be used for other public purposes.

Learned counsel further urged that though the plaintiff had

produced various documents, (copies whereof have been placed

before this Court along with the present Writ Petition) evincing the

encroachment o